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Confirmation Bias in Criminal Cases

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Confirmation Bias in Criminal Cases Moa Lidén Confirmation Bias in Criminal Cases Dissertation presented at Uppsala University to be publicly examined in Sal IV, Universitetshuset, Biskopsgatan 3, 753 10 Uppsala, Uppsala, Friday, 28 September 2018 at 10:15 for the degree of Doctor of Laws. The examination will be conducted in English. Faculty examiner: Professor Steven Penrod (John Jay College of Criminal Justice, City University New York). Abstract Lidén, M. 2018. Confirmation Bias in Criminal Cases. 284 pp. Uppsala: Department of Law, Uppsala University. ISBN 978-91-506-2720-6. Confirmation bias is a tendency to selectively search for and emphasize information that is consistent with a preferred hypothesis, whereas opposing information is ignored or downgraded. This thesis examines the role of confirmation bias in criminal cases, primarily focusing on the Swedish legal setting. It also examines possible debiasing techniques. Experimental studies with Swedish police officers, prosecutors and judges (Study I-III) and an archive study of appeals and petitions for new trials (Study IV) were conducted. The results suggest that confirmation bias is at play to varying degrees at different stages of the criminal procedure. Also, the explanations and possible ways to prevent the bias seem to vary for these different stages. In Study I police officers’ more guilt presumptive questions to apprehended than non-apprehended suspects indicate a confirmation bias. This seems primarily driven by cognitive factors and reducing cognitive load is therefore a possible debiasing technique. In Study II prosecutors did not display confirmation bias before but only after the decision to press charges, as they then were less likely to consider additional investigation necessary and suggested more guilt confirming investigation. The driving forces need further examination. Study III suggests that pretrial detentions influence judges’ perception of the evidence strength, making them more likely to convict, in cases where they themselves detained. This is indicative of a confirmation bias with social explanations, which, possibly, can be mitigated by changing decision maker between detention and main hearing. The confirmatory reasoning in Study I-III can be considered rational or irrational, following different types of rationality, like probabilistic or judicial rationality. In Study IV, statistical estimates based on empirical data from the Apellate Courts and the Supreme Court indicate that far from all wrongfully convicted who appeal or petition for a new trial are acquitted. A robustness analysis confirmed that these overall conclusions hold over a wide variety of assumptions regarding unknown parameters. Also, the usage of empirical methods to study law and legal phenomena is discussed. The concept of Evidence-Based Law (EBL) is used to exemplify how empirical legal research may benefit both legal scholarship and law in a wider sense. Keywords: legal decision making, bias, confirmation bias, criminal cases, criminal procedure, police, prosecutor, judge, legal system, empirical legal research, evidence based law, debiasing technique Moa Lidén, Department of Law, Box 512, Uppsala University, SE-75120 Uppsala, Sweden. © Moa Lidén 2018 ISBN 978-91-506-2720-6 urn:nbn:se:uu:diva-351709 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-351709) For my fellow dung beetles List of Papers This thesis is based on the following four studies, which are referred to in the text by their Roman numerals. The four studies comprise in total five papers. I Lidén, M., Gräns, M., Juslin, P. (2018). The Presumption of Guilt in Suspect Interrogations: Apprehension as a Trigger of Confirmation Bias and Debiasing Techniques. Law and Human Behavior, 42 (4), 336-354 (Published) II Lidén, M., Gräns, M., Juslin, P. (2018). From Devil’s Advocate to Crime Fighter: Confirmation Bias and Debiasing Techniques in Prosecutorial Decision Making. Psychology, Crime & Law (Submit- ted) III Lidén, M., Gräns, M., Juslin, P. (2018). “Guilty, No Doubt”: Deten- tion Provoking Confirmation Bias in Judges’ Guilt Assessments and Debiasing Techniques. Psychology, Crime & Law (Epub ahead of print) IV Lidén, M., Gräns, M., Juslin, P. (2018). Self-Correction of Wrongful Convictions: Is there a “System-level” Confirmation Bias in the Swedish Legal System’s Appeal Procedure for Criminal Cases? – Part I. Law, Probability & Risk (Epub ahead of print) Lidén, M., Gräns, M., Juslin, P. (2018). Self-Correction of Wrongful Convictions: Is there a “System-level” Confirmation Bias in the Swedish Legal System’s Appeal Procedure for Criminal Cases? – Part II. Law, Probability & Risk (Epub ahead of print) Reprints were made with permission from the respective publishers. Contents Chapter 1. Introduction ............................................................................. 11 1.1 General .......................................................................................... 11 1.2 Research Aims and Questions ....................................................... 14 1.3 Demarcations ................................................................................. 16 1.4 Thesis Outline ................................................................................ 17 Chapter 2. Methodological Framework ................................................... 18 2.1 Introduction ................................................................................... 18 2.2 Legal Decision Making and Methods in Legal Scholarship ......... 20 2.2.1 The Context of Discovery and The Context of Justification ............. 20 2.2.2 The American Legal Realists Research on the Operation of Thinking .................................................................................................................... 24 2.2.3 The Dualistic Ontology of Law ......................................................... 26 2.3 Methodological Assumptions ........................................................ 28 2.3.1 Assumptions in Legal Scholarship .................................................... 29 2.3.1.1 The Assumption of Transparency ............................................. 29 2.3.1.2 The Assumption of Consciousness ............................................ 30 2.3.2 Assumptions in Empirical Sciences .................................................. 31 2.3.2.1 The Assumption of Causation and Effect .................................. 31 2.3.2.2 The Assumption of Practical Relevance ................................... 35 2.4 Employed Methods ........................................................................ 39 2.5 Evidence-Based Law (EBL)? ........................................................ 42 Chapter 3. Confirmation Bias ................................................................... 45 3.1 Introduction ................................................................................... 45 3.2 Description of Confirmation Bias ................................................. 46 3.2.1 Confirmation Bias – A Long-Recognized Phenomenon ................... 46 3.2.2 Major Research Trends Since the 1960’s ......................................... 47 3.2.3 Nickerson’s Definition ...................................................................... 53 3.2.3.1 Conscious and Subconscious Decision Making Processes ....... 55 3.2.4 Confirmation Bias in Context ........................................................... 60 3.2.4.1 Witch hunt ................................................................................. 61 3.2.4.2 Medicine .................................................................................... 62 3.2.4.3 Science ....................................................................................... 63 3.2.4.4 The Legal Context ..................................................................... 65 3.2.4.4.1 Criminal Cases ................................................................... 66 3.2.4.4.1.1 Criminal Investigations .............................................. 67 3.2.4.4.1.1.1 The General Focus of the Inquiry ...................... 67 Suspect Driven Investigations ............................................ 67 Assymetrical Skepticism .................................................... 68 3.2.4.4.1.1.2 Identifications and Interrogations ...................... 70 Line-up Identifications ....................................................... 70 Suggestive Information and Leading Questions ................ 75 3.2.4.4.1.1.3 Forensic Investigation and Analysis .................. 80 Crime Scene Investigations ................................................ 80 Forensic Analysis ............................................................... 83 3.2.5 Confirmation Bias as a Description of Behavioral Patterns ............ 106 3.2.5.1 Relating and Demarcating Overlapping Confirmatory Behaviors ............................................................................................................. 108 3.3 Explanations of Confirmation Bias ............................................. 117 3.3.1 Perspectives in Cognitive Psychology ............................................ 118 3.3.2 Perspectives in Emotion and Motivation Psychology ..................... 122 3.3.3 Perspectives in Social and Organizational Psychology .................. 129 3.3.3.1 Social Psychology ................................................................... 130 3.3.3.2 Organizational Psychology ...................................................... 144 3.3.4 Confirmation Bias and Rationality .................................................
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